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Recent Blog Posts
401k Division in Divorce
It is no secret that the higher the account balance, and more diverse the assets inside a 401k, the harder the division is in a high-asset divorce. Recent changes to the law, as well as the interpretation of existing law, has fundamentally changed the way that these retirement accounts are valued and divided pursuant to a marriage dissolution action.
Valuation Methods
The traditional straightforward approach – account balance accumulated during the marriage divided by two – may be inappropriate for some complex property divisions in divorce actions, particularly if the account contains non-cash assets.
Assume that, at the time of marriage, Husband's 401k contains $10,000 in cash and 1,000 shares of stock valued at $30 per share ($40,000 total); at the time of divorce, there is $15,000 in cash and the shares are worth $50 each ($65,000 total). Under the normal subtraction method, there is $25,000 in community property. But the increase of separate property is separate property, so Husband is losing $20,000.
What Is the Best Interest of the Child?
The Texas Family Code states that all visitation and custody orders must be in the best interests of the children, but the law gives little direction in terms of making that determination. Thirty years ago, the Texas Supreme Court released its landmark decision in Holly v. Adams. Parents, practitioners, and judges still rely on this opinion to legally determine the best interests of the children in a variety of complex child custody situations.
This case involved the involuntary termination of parental rights, one of the rarest family law matters. Mother essentially abandoned Husband and their young son. In the ensuing years, she spent some time in a mental hospital, lived as a gypsy with three other men, got re-married and re-divorced, and eventually settled near Seattle.
Father sought to terminate Mother's parental rights on the basis that she provided almost no financial support ($100 in five years, according to records) and had no contact with the boy, other than two or three visits or letters per year. Nevertheless, the Supreme Court ruled that termination was not in the child's best interest.
Common Law Marriage in Texas
Texas is one of the few states that recognize informal marriages for all purposes, although most jurisdictions do give legal force and effect to common-law marriages from other states. As the name implies, an informal marriage does not require a license or ceremony. However, to dissolve one of these relationships, there must be a legal divorce and perhaps even a complex child custody hearing.
Proving a Common Law Marriage
One or both spouses can file a Declaration of Informal Marriage. As this document does not require the signature of both parties and does not need to be notarized, it cannot prove a common law marriage without supporting evidence during a high net worth divorce. According to Section 2.401 of the Family Code, the three legal elements of an informal marriage are:
- Agreement to be formally married;
Parental Alienation Syndrome: There Ought to Be a Law
In Ireland, a parent advocacy group wants to make parental alienation syndrome (PAS) a criminal offense. PAS is quite often a part of Central Texas complex child custody issues, to one extent or another.
The Parental Alienation Awareness Association defines PAS as a child's unjustified rejection of a previously-loved parent or caregiver, at the urging of another parent or caregiver. Although PAS is not recognized by the World Health Organization or American Psychiatric Association, family therapists have dealt with the condition since at least the 1950s. In most situations, an emotionally-needy parent offers the child warmth and extremely involved care in exchange for allegiance. The group cautioned that PAS is not the same thing as realistic estrangement, or a refusal of affection based on past abuse or neglect.
Business Valuation in a Divorce
One of the largest assets to divide in a high-asset divorce is also one of the most difficult ones to value. Because it contains both objective and subjective financial values, and may involve both separate and community property, valuing a business is a very deliberate process that nearly always involves considerable legal debate.
Some Examples
The court-ordered sale of the famed Waggoner Ranch near Vernon is an excellent example of an extremely high-value family business. In much the same way as a high net worth divorce, that litigation involved family members who could not agree whether to keep the property, sell it, or do a little of both.
Other examples include professional businesses, such as a law firm, insurance brokerage, or medical office, and small retail establishments, including repair shops, franchise operations, and small restaurants.
Adultery and High Asset Divorces
What bearing does the recent data breach at the adultery site Ashley Madison have on high-asset divorces in and around Travis County?
The Toronto-based company now faces several class-action lawsuits after hackers broke into the site and obtained personal information of about 39 million users, many of whom paid an additional $19 for a "permanent account deletion" that apparently never happened. Canadian lawyers quickly filed a class-action lawsuit against parent companies Avid Dating Life and Avid Life Media, demanding $578 million in damages. The lead plaintiff there is a Canadian man who joined the site briefly after his wife died from breast cancer.
Several similar lawsuits are already pending in Missouri and California.
Adultery in a Texas Divorce Case
The Lone Star State is one of the few jurisdictions where fault in the breakup of the marriage is a relevant factor in property division matters, and adultery one of the most common assertions in this area. Fault is relevant in both original divorce proceedings and modification actions. Although a high net worth divorce cannot normally be modified if the changed circumstances occurred prior to the final order, an aggressive attorney might convince a judge that facts from the Ashley Madison data breach were unavailable at the time, and the judge may allow a modification action based on the new evidence.
From Green to Gray: Issues in an Over-50 Divorce
Two or three generations ago, divorce was not a realistic option for most people, due largely to moral, religious, and economic reasons. This was especially true for those over 50. Instead, many couples opted to lead separate lives, and perhaps even lived in separate households, but remained legally married.
However, divorce lost much of its moral stigma in the 1970s, through the advent of no-fault marriage dissolution laws. During roughly that same time, the earnings gap between men and women began to close. Although this gap still exists, it is nowhere near as yawning as it was in 1970. Finally, as for the religious objection, Pope Francis recently softened the Catholic Church's position on divorce.
Beyond the Numbers: Deviating from Child Support Guidelines
To determine the amount of child support, the judge mechanically applies the guidelines in Chapter 154 of the Family Code, at least in the vast majority of cases. However, especially if there is a complex child custody dispute, these guidelines are not always reflective of the child's needs. What must a party do to convince a judge to depart from the guidelines, and how is the amount set in these situations?
Unjust or Inappropriate
In the case of Section 154.122, these two words are not synonyms. Instead, they give both the mother and the father a basis to request an increase, or decrease, in child support payments.
"Unjust" implies that the guidelines would require the non-custodial parent to pay too much, because this person's income is lower than the custodial parent's income. Such a situation was essentially unfathomable when this section was first codified in the 1970s, and even when the Family Code was rewritten in the 1990s. However, in today's world, it is not unusual for the mother and father to switch breadwinner and caregiver roles, at least to some extent.
Spousal Support and Income Taxes
The Internal Revenue Service recently released supplemental guidelines regarding spousal support payments and income tax consequences.
These payments are tax-deductible, but the IRS will scrutinize the deduction to ensure that the tax return meets certain qualifications. An obligor spouse must make payments in cash or cash equivalent directly to the obligee spouse; these payments are specifically designated as "maintenance" in the temporary or final order; the spouses are physically living in separate households; and the obligation ends upon the payor spouse's death.
"Alimony" does not include voluntary payments or use of property, and the obligor spouse does not have to itemize to claim a deduction.
Spousal Maintenance Eligibility
If followed to the letter, payments under Chapter 8 of the Family Code qualify for tax purposes. It is a popular myth that the payments must be periodic or equal; unequal or lump sum transfers may also qualify as alimony in a high-asset divorce.
Same-Sex Marriage Dissolution Comes to the Lone Star State
In July 2015, a Bexar County district judge gave the green light for a same-sex divorce to proceed through the system. The case has enormous implications for high asset divorce cases in Travis County and elsewhere in Central Texas.
The women legally married in Washington in 2010, and subsequently settled in the San Antonio area. One partner was artificially inseminated in February 2013, and the couple separated later that year. The child's non-biological mother had not been allowed visitation, until Judge Renée Yanta entered temporary orders in the divorce case. The woman's attorney applauded Judge Yanta for "follow[ing] the law," adding that "in San Antonio and Bexar County we take the lead on these issues."
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